Citation Nr: 0320012
Decision Date: 08/12/03 Archive Date: 08/25/03
DOCKET NO. 99-23 179 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased (compensable) rating for
residuals of a tonsillectomy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The appellant had active service from January 1954 to
December 1957.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a February 1998 rating decision by the Waco,
Texas, Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied an increased rating for residuals
of a tonsillectomy and also denied service connection for
post-traumatic stress disorder (PTSD). In a March 2001
decision, the Board remanded this case to the RO for further
development and in compliance with the Veterans Claims
Assistance Act (VCAA).
In a March 2003 decision, the Board denied service connection
for PTSD. Thus, this issue was resolved. The issue of an
increased rating for residuals of a tonsillectomy was
deferred pending further development, as set forth below.
FINDINGS OF FACT
1. The appellant was notified of a pending VA examination in
a June 2003 letter which specifically informed him of the
provisions of 38 C.F.R. § 3.655 and the consequences for
failing to report for VA examination.
2. The appellant failed to report for his scheduled VA
examinations in July 2003.
CONCLUSION OF LAW
Entitlement to a compensable rating for residuals of a
tonsillectomy is denied. 38 C.F.R. § 3.655 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
There has been a significant change in the law during the
pendency of this appeal with the enactment of the VCAA.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002). To implement the provisions of the law, the VA
promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a)). The amendments became effective November
9, 2000, except for the amendment to 38 C.F.R. § 3.156(b)
which became effective August 29, 2001. Except for the
amendment to 38 C.F.R. § 3.156(a), the second sentence of 38
C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA
stated that "the provisions of this rule merely implement
the VCAA and do not provide any rights other than those
provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly,
in general where the record demonstrates that the statutory
mandates have been satisfied, the regulatory provisions
likewise are satisfied. The Act and implementing regulations
eliminate the concept of a well-grounded claim, redefine the
obligations of VA with respect to the duty to assist, and
supersede the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174
(per curiam order) (holding that VA cannot assist in the
development of a claim that is not well grounded).
First, VA has a duty to notify the appellant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. The discussion in the RO's
February 1998 and April 1999 rating decisions, September 1999
statement of the case, September 2000 supplemental statement
of the case, March 2001 Board decision, August 2001 letter
discussing VCAA, and February 2003 supplemental statement of
the case, informed the appellant of the information and
evidence needed to substantiate his claim and complied with
VA's notification requirements. The Board decision and VCAA
letter informed him of the duty to notify, the duty to
assist, to obtain records, and examinations or opinions.
Thus, the appellant has been provided notice of what VA was
doing to develop the claim, notice of what he could do to
help his claim and notice of how his claim was still
deficient. The Board notes that the appellant changed
addresses several times. The RO made efforts to send all
pertinent correspondence to the claimant at his most recent
address throughout the claims process.
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A. In the instant case, VA has made efforts to develop
the record. Efforts were made to obtain all pertinent
records bearing on his claim to include VA records and Social
Security Administration records. In addition, as discussed
below, the appellant was scheduled for a VA examination, but
chose not to report. VA has fulfilled its duty to assist.
There is no indication that there is any additional relevant
competent evidence to be obtained either by the VA or by the
appellant, and there is no other specific evidence to advise
him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183
(2002) (holding that both the statute, 38 U.S.C. § 5103(a),
and the regulation, 38 C.F.R. § 3.159, clearly require the
Secretary to notify a claimant which evidence, if any, will
be obtained by the claimant and which evidence, if any, will
be retrieved by the Secretary). As such, the Board finds
that the development requirements of the VCAA have also been
met. VA has done everything reasonably possible to assist
the appellant. As indicated below, it is clear that the
appellant does not wish to cooperate with VA. If an
appellant wishes help, he cannot passively wait for it in
those circumstances where he may or should have information
that is essential in obtaining the putative evidence. See
Dusek v. Derwinski, 2 Vet. App. 522 (quoting Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991)). Due to the
appellant's lack of cooperation, his claim is being denied.
In a June 2003 letter, the appellant was notified of the need
for a VA examination in order to provide medical evidence
required for a determination on his current claim. This
letter was sent to the veteran's last reported address. He
was informed of the provisions of 38 C.F.R. § 3.655 (2002)
regarding the consequences for failing to report for VA
examination. Thus, he was advised that failing to report for
the examination was adversely affect his current claim. This
action, standing alone, complies with VCAA. He was informed
that he had to report and that if he failed, the claim would
be denied.
The veteran failed to report for his scheduled VA examination
in July 2003. He has not provided any explanation for his
failure to report. Rather, in a letter received in late June
2003, the appellant essentially indicated that he was not
interested in cooperating with VA. He sent back the VA
letter notifying him of the examination and 38 C.F.R. § 3.655
(2002) and he had placed a large "X" through the letter.
According to 38 C.F.R. § 3.655(a), (b) (2002), when
entitlement or continued entitlement to a benefit cannot be
established or confirmed without a current VA examination or
reexamination and a claimant, without good cause, fails to
report for such examination, or reexamination; and the
examination was scheduled in conjunction with any other
original claim, a reopened claim for a benefit which was
previously disallowed, or a claim for increase, the claim
shall be denied. Examples of good cause include, but are not
limited to, the illness or hospitalization of the claimant,
death of an immediate family member, etc.
Since the appellant's claim for an increased rating falls
within the parameter of "a claim for an increased rating,"
the claim is accordingly denied pursuant to 38 C.F.R. §
3.655(b). Entitlement cannot be established without a
current VA examination.
The appellant has failed to provide any reasons for his
failure to report for the VA examination. As noted, he
clearly received the notification of the examination, but
chose to refuse to report for this examination. Under the
circumstances, his claim must be denied. See Sabonis v.
Brown, 6 Vet. App. 426 (1994).
ORDER
An increased rating for residuals of a tonsillectomy is
denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.